Alien Tort Claims Act-Alien Tort Statute ('Ats') And Westfall Act

• Pages: 2-3

2Volume 23, January–March 2017 international law update

© 2017 International Law Group, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com

ALIEN TORT CLAIMS

ACT/ALIEN TORT

STATUTE (“ATS”) AND

WESTFALL ACT

Ninth Circuit upholds district court

decision that defendants are entitled

to immunity under the Westfall Act.

As plaintiff did not exhaust her

administrative remedies against the

United States, the district court

properly dismissed the case for lack of

subject matter jurisdiction

Plaintif‌f Sundus Shaker Saleh sues several

individuals who served as high-ranking of‌f‌icials in

the administration of President George W. Bush.

Plaintif‌f claims that the former of‌f‌icials conspired

to engage in, and did engage in, a war of aggression

against Iraq and that, in doing so, they violated the

“law of nations” within the meaning of the Alien

Tort Statute (“ATS”), 28 U.S.C. § 1350.

In 2003, Kurdish Army troops forced Plaintif‌f

and her family to leave their home in Jalawla, Iraq,

and f‌lee to Baghdad. e troops, who were aligned

with the United States, were taking part in what has

become known as the Iraq War, a military action

that of‌f‌icially began on March 19, 2003, but that,

Plaintif‌f claims, Defendants had been planning for

years.

Plaintif‌f brought this action in 2013. She

alleges that Defendants’ conduct in planning and

executing the Iraq War amounted to the “crime of

aggression” and a conspiracy to commit the crime

of aggression, which she claims was a violation of

the “law of nations” within the meaning of the ATS.

After she f‌iled an amended complaint in September

2013, the United States f‌iled a certif‌ication that

Defendants had been acting within the scope of

their federal of‌f‌ice or employment at the time of the

incidents at issue in this matter. Under Westfall Act,

28 U.S.C. § 2679(d)(1), the United States was then

substituted as the sole defendant. ereafter, the

amended complaint was dismissed because Plaintif‌f

had failed to exhaust her administrative remedies

as required by the FTCA, 28 U.S.C. § 2675(a).

Plaintif‌f f‌iled a second amended complaint. e

United States again f‌iled a “scope certif‌ication,”

and the district court again substituted the United

States and dismissed the action, this time with

prejudice. e district court also denied Plaintif‌f’s

motion for an evidentiary hearing to challenge the

scope certif‌ication. Plaintif‌f timely appealed both

the dismissal of the action and the denial of her

motion for an evidentiary hearing.

e Westfall Act, which was enacted in

response to the Supreme Court’s decision in

Westfall, accords federal employees absolute

immunity from common-law tort claims arising

out of acts they undertake in the course of their

of‌f‌icial duties. e immunity extends to both

“negligent” and “wrongful” “acts or omissions of

any employee acting within the scope of his of‌f‌ice

or employment.” When determining whether a

federal of‌f‌icer’s actions fall within “the scope of his

of‌f‌ice or employment” for purposes of the Westfall

Act, the court applies “the principles of respondent

superior of the state in which the alleged tort

occurred.”

Plaintif‌f next argued that the Westfall Act should

not be interpreted so as to regard as “of‌f‌icial” an

act condemned by treaty. Plaintif‌f cited as support

for this proposition the United Kingdom case of

Regina v. Bartle & the Commissioner of Police for

the Metropolis & Others ex parte Pinochet (No. 3),

[2000] 1 A.C. 147 (H.L.). is argument suf‌fered

from at least two fatal f‌laws. First, the equivalent

of the “scope of employment” test in the Pinochet

case was a creature of international law, not a test

set out by a domestic statute. Second, although the

court had suggested that ambiguous statutes should

be interpreted to avoid conf‌licts even with non-self-

executing treaties, the Westfall Act was not, in any

relevant way, ambiguous.

“We assume, without deciding, that the

prohibition against aggression is a jus cogens norm.

But even assuming that the prohibition against

aggression is a jus cogens norm, Plaintif‌f’s argument

that Congress cannot provide immunity to federal

of‌f‌icers in courts of the United States for violations

of that norm is in serious tension with our case